HIFAJAT Vs. AJIJUREHMAN

JUDGEMENT

(1.) On 6.3.1997 at about 8 p.m. Hifajat Ali, claimant, a pedestrian, sustained injuries in a scooter accident. As per claimant this scooter No. MP 10-B 984 belonged to Ayesha Sultana, the owner, who happens to be an Assistant Surgeon in Ayurvedic Hospital, Khargone. As per claimant the scooter was driven by Rafik, juvenile son of Ayesha Sultana, rashly and negligently. On report of the claimant, the police had prosecuted Ajijurehman Sheikh, respondent No.1, a private doctor, practising at Sendhwa, the husband of Ayesha Sultana, under sections 279 and 337 of the Indian Penal Code. The Claims Tribunal below held that the offending scooter was being driven by Rafik, respondent No. 2, the juvenile son, rashly and negligently and awarded in all Rs. 33,000 for permanent disability and mental and physical pain and suffering, Rs. 7,597 + Rs. 920 + Rs. 5,681 = Rs. 14,198 as medical expenses Rs. 11,800 as loss of salary of two months, in all Rs. 56,000 in lump sum with interest at the rate of 15 per cent in case the awarded amount was not paid within 2 months of the award. Besides this Rs. 1,000 were awarded as advocate's fees also.

(2.) Hifajat Ali, claimant, filed M.A. No. 545 of 2001 for enhancement of compensation while Ajijurehman, respondent No. 1, the husband, Ayesha Sultana, respondent No. 3, the scooter owner and Rafik, respondent No. 2, scooter driver, filed M.A. No. 250 of 2001 claiming that Rafik, respondent No. 2 had not been driving the scooter and no accident was caused with the scooter of Ayesha Sultana, as alleged by the claimant.

(3.) First I proceed to decide as to the liability. Hifajat Ali Saiyed, AW.1, the claimant, has deposed that he was dashed by scooter No. MP 10-B 894, such scooter was driven on wrong side, time was about 8 p.m., night had set in. There were also several persons at the spot. Hamid Khan and Ayub Khan, AW 2, were there, they had caught the scooter driver. Hifajat AH, AW 1, has claimed that at 3 a.m. he had seen Ayesha Sultana, respondent No. 3, her son, respondent No. 2 and Ramzan, AW 4. They apologized that the child had hurt by mistake which clearly points out towards Rafik, respondent No. 2, as the scooter driver. Both Ayub Khan, AW 2 and Ramzan, AW 4, had been positive on oath that son of Ayesha Sultana, respondent No. 2, had been driving the offending, scooter. These three witnesses have been cross-examined at great length but there has been nothing material either to disbelieve or discard their statements. It is noteworthy that in the report to police, name of the driver of the scooter was not taken and the police had prosecuted Ajiju-rehman Sheikh, respondent No. 1, husband of Ayehsa Sultana. Ayesha Sultana, NAW 1 and Ajijurehman Sheikh, NAW 2, both wife and husband were examined before the Tribunal and have denied that Ajijurehman, NAW 2, was driving the offending scooter at the time of the accident. Both claimed that keys of scooter remain with Ajijurehman Sheikh, NAW 2, when he goes out and son Rafik, respondent No. 2, does not drive the scooter. However, Rafik, respondent No. 2, is a young man and college going student, he has not been produced before the court to rebut the case of the claimant though he was made a party to the claim. He has not dared to face the cross-examination of the advocate for the claimant. In all these facts of the case the conclusion drawn by Tribunal that Rafik, respondent No. 2, the son had been driving the offending vehicle scooter rashly and negligently at the time of accident whereby Hifajat Ali, AW 1, the claimant was injured has neither been erroneous nor can be faulted. Thus, appeal by Ayesha Sultana and her son failed. However, Ajijurehman Sheikh, husband of Ayesha Sultana, the respondent No. 3 and father of Rafik, respondent No. 2, the scooter driver, was not clearly responsible for the accident and thus no award can be given against him. M.A. No. 250 of 2001 is partly allowed to that extent.